Thomas Shrader v. B. Plumley

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT THOMAS CREIGHTON SHRADER, No. 18-15905 Petitioner-Appellant, D.C. No. 1:17-cv-01338-LJO-JDP v. MEMORANDUM* B. W. PLUMLEY, Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding Submitted September 18, 2019** Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.

Federal prisoner Thomas Creighton Shrader appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2241 habeas corpus petition. We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, Tablada v. Thomas, 533 F.3d 800, 805 (9th Cir. 2008), we vacate and remand.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

When, as here, a party files written objections to the magistrate judge’s findings and recommendations, the district judge is required to conduct a de novo review of the proposed findings and recommendations. See 28 U.S.C. § 636(b)(1)(C). The errors in the district judge’s order adopting the magistrate judge’s report, including the references to Shrader as a state prisoner proceeding under 28 U.S.C. § 2254 and constitutional claims which Shrader did not raise, suggest that he may not have conducted such a review in this case. Accordingly, we vacate the judgment and the May 10, 2018, order, and remand for the district judge to conduct a de novo review of the findings and recommendations.1 In light of this decision, we need not address Shrader’s remaining arguments.

Shrader’s motion to take judicial notice of his objections to the magistrate judge’s findings and recommendations and rebuttal to the government’s response is denied as unnecessary. Those documents were included in the government’s supplemental excerpts of record and have been considered.

VACATED and REMANDED.